Evidence that treating people with HIV early in infection prevents transmission to sexual partners has reframed HIV prevention paradigms. The resulting emphasis on HIV testing as part of prevention strategies has rekindled the debate as to whether laws that criminalise HIV transmission are counterproductive to the human rights-based public health response. It also raises normative questions about what constitutes ‘safe(r) sex’ if a person with HIV has undetectable viral load, which has significant implications for sexual practice and health promotion. This paper discusses a recent high-profile Australian case where HIV transmission or exposure has been prosecuted, and considers how the interpretation of law in these instances impacts on HIV prevention paradigms. In addition, we consider the implications of an evolving medical understanding of HIV transmission, and particularly the ability to determine infectiousness through viral load tests, for laws that relate to HIV exposure (as distinct from transmission) offences. We conclude that defensible laws must relate to appreciable risk. Given the evidence that the transmissibility of HIV is reduced to negligible level where viral load is suppressed, this needs to be recognised in the framing, implementation and enforcement of the law. In addition, normative concepts of ‘safe(r) sex’ need to be expanded to include sex that is ‘protected’ by means of the positive person being virally suppressed. In jurisdictions where use of a condom has previously mitigated the duty of the person with HIV to disclose to a partner, this might logically also apply to sex that is ‘protected’ by undetectable viral load.
Australia: Academic article explores the prevention impact of treatment on criminal 'exposure' laws and prosecutions
News curated from other sources

US: Indiana to undertake a review of its criminal code for laws concerning HIV
Laws criminalizing HIV to be reviewed by legislative interim study committee
May 25, 2022

US: Georgia's Governor signs Senate Bill 164 to modernize state's HIV laws
Press Release: Georgia makes strides in modernizing HIV disclosure law
May 12, 2022

Argentina: New HIV law seeking to provide comprehensive response to HIV approved
The Chamber of Deputies gave half sanction to the new HIV law with a large majority
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US: Tennessee Senate votes to remove sex offender registry requirement for HIV related offences
Lawmakers Seek to Reduce Penalties for HIV Criminal Exposure Law
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